Exhibit 10.1


 


DEFERRAL AGREEMENT


 


This
Deferral Agreement (this “Agreement”) is made August 11, 2008, among
Hospitality Properties Trust (the “Trust”), HPT TA Properties Trust (“HPT TA
Trust”), HPT TA Properties LLC (“HPT TA LLC”), HPT PSC Properties Trust (“HPT
PSC Trust”), HPT PSC Properties LLC (“HPT PSC LLC” and together with the Trust,
HPT TA Trust, HPT TA LLC, HPT PSC Trust, “HPT”), TravelCenters of America LLC (“TravelCenters”),
TA Leasing LLC (“TA Leasing”) and Petro Stopping Centers, L.P. (“Petro” and
together with TravelCenters and TA Leasing, “TA”).


 


RECITAL


 


The
parties are parties to a lease dated January 31, 2007, as amended, and a
lease dated May 30, 2007, as amended, and certain related and/or
incidental documents and agreements (collectively, the “Lease Documents”).


 


As a
result of material and unforeseen changes in the market conditions in which TA
operates since the Lease Documents were entered into, the parties wish to defer
certain rental obligations thereunder.


 


Now,
therefore, the parties agree:


 


1.             Deferral.  TA shall have the right to defer up to
$5,000,000 of Minimum Rent (this and other capitalized terms used with the
meanings ascribed to such terms in the Lease Documents) due each month under
the Lease Documents beginning with the Minimum Rent payable for July 2008
and continuing through the Minimum Rent payable for December, 2010, which is
payable January 1, 2011 (all such rent so deferred, the “Deferred Rent”).  The right to defer Minimum Rent shall not be
cumulative if less than $5,000,000 is deferred in any calendar month, provided
that TA, having paid Minimum Rent for July 2008, may defer up to
$10,000,000 of Minimum Rent payable for August 2008.  Any Minimum Rent deferred shall be in
multiples of $1,000,000.


 


2.             Interest.  No interest shall be payable on the Deferred
Rent prior to December 31, 2009. 
Beginning January 1, 2010, interest shall accrue at the rate of 1%
per month on the Deferred Rent and shall be paid by TA to HPT, monthly, in
arrears, at the time and in the manner provided in the Lease Documents for the
payment of Minimum Rent, beginning with the payment of Minimum Rent due on the
first Business Day of February 2010.


 


3.             Payment and Prepayment.  The Deferred Rent, together with any accrued
and unpaid interest, shall be due on the first Business Day of July 2011.
The Deferred Rent may be prepaid at any time without premium or penalty, in
whole or part, provided any partial prepayment shall be made in multiples of
$1,000,000, together with accrued and unpaid interest, if any.


 


4.             TravelCenters Shares.  In consideration for the right to defer
Minimum Rent under the Lease Documents as provided in this Agreement,
contemporaneously with the execution of this Agreement TravelCenters will issue
1,540,000 common shares, no par value (together with any shares of
TravelCenters issued in respect of such common shares as a result of 


 


1

















 


any stock split,
stock dividend, share exchange, merger, consolidation or similar recapitalization,
the “Common Shares”), representing common limited liability company interests
in TravelCenters subject to the restrictions set forth in this Section 4,
to HPT and will provide registration rights under the Securities Act of 1933
for the Common Shares pursuant to a Registration Rights Agreement attached as Exhibit A.  On January 1, 2010, if TA has exercised
its right to defer Minimum Rent in an aggregate amount less than that permitted
pursuant to Section 1 prior to that date, a number of the Common Shares
shall thereupon be subject to repurchase by TravelCenters for consideration of
$0.01/share by notice given to HPT on or before March 1, 2010, such number
being equal to 1,540,000 multiplied by a fraction, the numerator of which is
$90,000,000 minus the aggregate Minimum Rent deferred through and including January 1,
2010, whether or not then repaid, and the denominator of which is
$90,000,000.  Upon repurchase by
TravelCenters, neither HPT nor any assignee or transferee of HPT shall have any
further rights or interests in such repurchased Common Shares


 


5.             Redemption, Dividends and
Cooperation.  TravelCenters and its
Subsidiaries shall not offer to redeem or redeem any of TravelCenters’s common
shares prior to repayment in full of the Deferred Rent and any accrued and
unpaid interest, and thereafter, will not offer to redeem or redeem any of
TravelCenters’s common shares if such redemption would result in the Common
Shares representing more than 9.8% of the issued and outstanding shares of
TravelCenters not subject to any rights of repurchase or forfeiture; provided
that at any time TravelCenters may redeem common shares issued to officers and
employees pursuant to an equity compensation plan where redemption is for
nominal consideration, if such redemption would not result in the Common Shares
representing more than 9.8% of the issued and outstanding shares of
TravelCenters not subject to any rights of repurchase or forfeiture.  TravelCenters shall not declare or make any
distributions on its common shares prior to repayment in full of the Deferred
Rent and any accrued and unpaid interest. 
TA will reasonably cooperate with any HPT request involving HPT’s
compliance with Code section 856(d)(2)(B) (including the applicable
attribution rules of Code section 856(d)(5)).


 


6.             Termination of Deferral.  Anything in this Agreement to the contrary
notwithstanding, the right of TA to defer Minimum Rent as provided in this
Agreement shall immediately terminate upon (a) the occurrence of an Event
of Default under any of the Lease Documents, (b) the election of any
director to the Board of Directors of TA who was not nominated or appointed by
the then members of the Board of Directors of TA, (c) the adoption by the
shareholders of TA, at an annual or special meeting, of any proposal, other
than a precatory proposal, not recommended for adoption by the then members of
the Board of Directors of TA and (d) any failure to timely make payments
of interest under Section 2 above. 
Immediately upon the termination of the right to defer Minimum Rent, all
Deferred Rent, if any, together with accrued and unpaid interest, if any, shall
be immediately due and payable.  Any
default by TA under this Agreement shall constitute an Event of Default under
the Lease Documents.


 


7.             Representations and Warranties
of TA.  TA represents and warrants to
HPT that:


 


(a)           Organization.  Each entity
comprising TA is duly organized, validly
existing and in good standing under the laws of its jurisdiction or
organization and has full limited liability company or limited partnership
power and authority to conduct its 


 


2

















 


business as it is now being
conducted and to own, operate or lease its properties and assets.


 


(b)           Authorization.  Each entity
comprising TA has all requisite limited
liability company or limited partnership power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.  The execution and delivery of this Agreement
by each entity comprising TA and the consummation by each of the transactions
contemplated hereby have been duly authorized by all necessary limited
liability company or limited partnership action by each entity comprising TA.  This
Agreement has been duly and validly executed and delivered by each entity
comprising TA and, assuming due authorization, execution and delivery by each
of the other parties, constitutes the legal, valid and binding obligation of
each entity comprising TA, enforceable against each such entity in accordance
with its terms, except as such enforcement may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws relating to creditors’ rights generally, (ii) general principles of
equity (whether applied in a proceeding at law or in equity) and (iii) any
implied covenant of good faith and fair dealing.


 


(c)           No Violation.  The execution and delivery of this Agreement by
each entity comprising TA does not, and the consummation by each such entity of
the transactions contemplated by this Agreement will not, (i) conflict
with, or result in any violation of or default under, any provision of any such
entity’s limited liability company agreement or limited partnership agreement; (ii) conflict
with or result in any violation of or default under, any law or judgment
applicable to any such entity, or to which any of their respective properties
are subject; or (iii) conflict with, or, with or without notice or the
lapse of time, result in a breach, termination (or right of termination) or
violation of or default under the terms of any agreement, contract, indenture
or other instrument to which any such entity is a party or subject, or to which
any of their respective properties are subject.


 


(d)           Approvals.  The execution and delivery of this Agreement by
each entity comprising TA and the consummation by it of the transactions
contemplated by this Agreement do not require the consent, approval, order, or
authorization of any person under any agreement, contract, indenture or other
instrument or Applicable Laws to which any entity comprising TA is a party or
subject or to which any of their respective properties are subject, and no
declaration, filing or registration with any governmental entity is required by
any such entity in connection with the execution and delivery of this Agreement
and the consummation by it of the transactions contemplated by this Agreement,
except for filings required under securities laws.


 


(e)           Common Shares.  The Common Shares, when issued in accordance
with the terms of this Agreement, will be duly authorized, validly issued,
fully paid and non-assessable and not subject to any preemptive rights and
issued in compliance with all Applicable Laws. 
As of the date of this Agreement, after issuance of the Common Shares,
the Common Shares represent 9.8% of the issued and outstanding shares of
TravelCenters, other than those subject to any rights of repurchase or
forfeiture (provided 


 


3

















 


for purposes of this Section 7(e), the Common
Shares shall not be considered to be subject to any rights of repurchase or
forfeiture).


 


8.             Representations and Warranties
of HPT.  HPT represents and warrants
to TA that:


 


(a)           Organization.  Each entity
comprising HPT is duly organized, validly existing
and in good standing under the laws of its jurisdiction or organization and has
full trust or limited liability company power and authority to conduct its
business as it is now being conducted and to own, operate or lease its
properties and assets.


 


(b)           Authorization.  Each entity
comprising HPT has all requisite trust or
limited liability company power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.  The execution and delivery of this Agreement
by each entity comprising HPT and the consummation by each of the transactions
contemplated hereby have been duly authorized by all necessary trust or limited
liability company action by each entity comprising HPT.  This Agreement has been duly and validly
executed and delivered by each entity comprising HPT and, assuming due
authorization, execution and delivery by each of the other parties, constitutes
the legal, valid and binding obligation of each entity comprising HPT,
enforceable against each such entity in accordance with its terms, except as
such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to creditors’ rights generally, (ii) general principles of equity (whether
applied in a proceeding at law or in equity) and (iii) any implied
covenant of good faith and fair dealing.


 


(c)           No Violation.  The execution and delivery of this Agreement by
each entity comprising HPT does not, and the consummation by each such entity
of the transactions contemplated by this Agreement will not, (i) conflict
with, or result in any violation of or default under, any provision of any such
entity’s declaration of trust or limited liability company agreement; (ii) conflict
with or result in any violation of or default under, any law or judgment
applicable to any such entity or to which any of their respective properties
are subject; or (iii) conflict with, or, with or without notice or the
lapse of time, result in a breach, termination (or right of termination) or
violation of or default under the terms of any agreement, contract, indenture
or other instrument to which any such entity is a party or subject or to which
any of their respective properties are subject.


 


(d)           Approvals.  The execution and delivery of this Agreement by
each entity comprising HPT and the consummation by it of the transactions
contemplated by this Agreement do not require the consent, approval, order, or
authorization of any person under any agreement, contract, indenture or other
instrument or Applicable Laws to which any entity comprising HPT is a party or
subject or any of their representative properties are subject, and no
declaration, filing or registration with any governmental entity is required by
any such entity in connection with the execution and delivery of this Agreement
and the consummation by it of the transactions contemplated by this Agreement,
except for filings required under securities laws.


 


4

















 


9.             Mergers.  Pursuant to Section 21.9 of the leases
included in the Lease Documents, the proposed merger of Petro with and into TA
Operating LLC and the subsequent merger of TA Leasing LLC with and into TA
Operating LLC are each approved by HPT and it is agreed that neither will
constitute a prohibited Change of Control under the Lease Documents.


 


10.           Issuance of Common Shares.  It is agreed that the issuance of the Common
Shares will not constitute a prohibited Change of Control under the Lease
Documents.


 


11.           TravelCenter’s Guaranty.  TravelCenters affirms that its guaranty of
the leases included in the Lease Documents remains in full force and effect and
unmodified.


 


12.           Miscellaneous.


 


(a)           No Waiver.   No failure by HPT or
TA, to insist upon the strict performance of any term hereof or to exercise any
right, power or remedy consequent upon a breach thereof shall constitute a
waiver of any such breach or of any such term. 
To the maximum extent permitted by law, no waiver of any breach shall
affect or alter this Agreement, which shall continue in full force and effect
with respect to any other then existing or subsequent breach.


 


(b)           Severability.   Any clause,
sentence, paragraph, section or provision of this Agreement held by a court of
competent jurisdiction to be invalid, illegal or ineffective shall not impair,
invalidate or nullify the remainder of this Agreement, but rather the effect
thereof shall be confined to the clause, sentence, paragraph, section or
provision so held to be invalid, illegal or ineffective, and this Agreement
shall be construed as if such invalid, illegal or ineffective provisions had
never been contained therein.


 


(c)           Notices.


 


(i)            Any and all notices, demands,
consents, approvals, offers, elections and other communications required or
permitted under this Agreement shall be deemed adequately given if in writing
and the same shall be delivered either in hand, by telecopier with written
acknowledgment of receipt, or by mail or Federal Express or similar expedited
commercial carrier, addressed to the recipient of the notice, postpaid and
registered or certified with return receipt requested (if by mail), or with all
freight charges prepaid (if by Federal Express or similar carrier).


 


(ii)           All notices required or permitted to
be sent hereunder shall be deemed to have been given for all purposes of this
Agreement upon the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or refusal,
except that whenever under this Agreement a notice is either received on a day
which is not a Business Day or is required to be delivered on or before a
specific day which is not a Business Day, the day of receipt or required
delivery shall automatically be extended to the next Business Day.


 


(iii)          All such notices shall be addressed,


 


5

















 


if to HPT:


 


c/o Hospitality
Properties Trust


400 Centre Street


Newton,
Massachusetts  02458


Attn:  John G. Murray, President


Facsimile: (617) 969-5730


 


with a copy to (which shall
not constitute notice):


 


Sullivan &
Worcester LLP


One Post Office Square


Boston,
Massachusetts  02109


Attn:  Richard Teller


Facsimile: (617) 338-2880


 


 


 


if to TA:


 


c/o TravelCenters of
America LLC


24601 Center Ridge Road


Westlake, Ohio  44145


Attn:  Thomas M. O’Brien, President


Facsimile: (440) 808-3301


 


 


 


with a copy to (which
shall not constitute notice):


 


Skadden, Arps, Slate Meagher & Flom LLP

One Beacon Street

Boston, MA 02108

Attn.:  Louis Goodman

Facsimile:  (617) 573-4822


 


(iv)          By notice given as herein provided,
the parties hereto and their respective successors and assigns shall have the
right from time to time and at any time during the term of this Agreement to
change their respective addresses effective upon receipt by the other parties of
such notice and each shall have the right to specify as its address any other
address within the United States of America.


 


(d)           Construction.   Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party to be
charged.  All the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.


 


6

















 


(e)           Counterparts; Headings.  This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but which, when taken
together, shall constitute but one instrument and shall become effective as of
the date hereof when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto shall have been signed.  Headings in this Agreement are for purposes
of reference only and shall not limit or affect the meaning of the provisions
hereof.


 


(f)            Applicable Law, Etc. 
Except as to matters regarding the internal affairs of HPT, HPT TA Trust
and HPT PSC Trust and issues of or limitations on any personal liability of the
shareholders and trustees or directors of HPT, HPT TA Trust and HPT PSC Trust
for obligations of HPT, HPT TA Trust and HPT PSC Trust, as to which the laws of
the State of Maryland shall govern, this Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of the State of
Delaware applicable to contracts between residents of Delaware which are to be
performed entirely within Delaware, regardless of (i) where this Agreement
is executed or delivered; or (ii) where any payment or other performance
required by this Agreement is made or required to be made; or (iii) where
any breach of any provision of this Agreement occurs, or any cause of action
otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile,
principal place of business, or jurisdiction of organization or domestication
of any party; or (vi) whether the laws of the forum jurisdiction otherwise
would apply the laws of a jurisdiction other than Delaware; or (vii) any
combination of the foregoing.


 


(g)           Entire Agreement.  This Agreement (including all agreements
entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations and
discussions between the parties, whether oral or written


 


(h)           Attorneys’ Fees.  If any
lawsuit or arbitration or other legal proceeding arises in connection with the
interpretation or enforcement of this Agreement, the prevailing party therein
shall be entitled to receive from the other party the prevailing party’s costs
and expenses, including reasonable attorneys’ fees incurred in connection
therewith, in preparation therefor and on appeal therefrom, which amounts shall
be included in any judgment therein.


 


7

















 


(i)            Non-liability
of Trustees.


 


(i)            THE
AMENDED AND RESTATED DECLARATION OF TRUST OF HOSPITALITY PROPERTIES TRUST,
DATED AUGUST 21, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS AND
SUPPLEMENTS THERETO, IS DULY FILED IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE NAME “HOSPITALITY
PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER THE DECLARATION OF TRUST AS SO
AMENDED AND SUPPLEMENTED, COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF
HOSPITALITY PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY
OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HOSPITALITY PROPERTIES
TRUST.  ALL PERSONS DEALING WITH
HOSPITALITY PROPERTIES TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
HOSPITALITY PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION.


 


(ii)           THE DECLARATION OF TRUST OF HPT TA
PROPERTIES TRUST, DATED NOVEMBER 29, 2006, A COPY OF WHICH IS DULY FILED IN THE
OFFICE OF THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND,
PROVIDES THAT THE NAME “HPT TA PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER
THE DECLARATION OF TRUST, COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT
TA PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HPT TA PROPERTIES
TRUST.  ALL PERSONS DEALING WITH HPT TA
PROPERTIES TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HPT TA PROPERTIES
TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


(iii)          THE DECLARATION OF TRUST OF HPT PSC
PROPERTIES TRUST, DATED MAY 23, 2007, A COPY OF WHICH IS DULY FILED IN THE
OFFICE OF THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND,
PROVIDES THAT THE NAME “HPT PSC PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER
THE DECLARATION OF TRUST, COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT
PSC PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HPT PSC PROPERTIES
TRUST.  ALL PERSONS DEALING WITH HPT PSC
PROPERTIES TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE 


 


8

















 


ASSETS OF HPT PSC PROPERTIES TRUST FOR THE PAYMENT OF
ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


Signatures appear on the next page


 


9

















 


Executed
under seal as of the date first above written.


 




	
   

  	
   

  	
  HOSPITALITY PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John G. Murray

  
	
   

  	
   

  	
   

  	
  Name:  John G. Murray

  
	
   

  	
   

  	
   

  	
  Title:   President

  






 


 




	
   

  	
   

  	
  HPT TA PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John G. Murray

  
	
   

  	
   

  	
   

  	
  Name:  John G. Murray

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


 




	
   

  	
   

  	
  HPT
  TA PROPERTIES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John G. Murray

  
	
   

  	
   

  	
   

  	
  Name:  John G. Murray

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


 




	
   

  	
   

  	
  HPT
  PSC PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John G. Murray

  
	
   

  	
   

  	
   

  	
  Name:  John G. Murray

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


 




	
   

  	
   

  	
  HPT
  PSC PROPERTIES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John G. Murray

  
	
   

  	
   

  	
   

  	
  Name:  John G. Murray

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


 




	
   

  	
   

  	
  TRAVELCENTERS OF AMERICA
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Name:  Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


10

















 




	
   

  	
   

  	
  TA
  LEASING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Name:  Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


 




	
   

  	
   

  	
  PETRO STOPPING CENTERS,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Name:  Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Title:  President

  






 


11
















 


EXHIBIT A


 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement  (this “Agreement”) made August 11, 2008, between TravelCenters of
America LLC  (the “Company”) and
Hospitality Properties Trust (the “Shareholder”).


 


RECITAL


 


Pursuant to the terms of that certain Deferral
Agreement, dated August 11, 2008 (the “Deferral Agreement”), among the
Company, the Shareholder and certain of their affiliates, the Company has
issued and the Shareholder has acquired and holds as of the date hereof
1,540,000 common shares, no par value, representing limited liability company
interests of the Company subject to the restrictions set forth in Section 4
of the Deferral Agreement (the “Shares”).


 


The Company has agreed to enter into this Agreement to
provide the Shareholder with certain rights relating to the registration of the
Shares.


 


Now, therefore, the parties agree as follows:


 


13.           DEFINITIONS.  Except as otherwise noted, for all purposes
of this Agreement, the following terms shall have the respective meanings set
forth in this Agreement, which meanings shall apply equally to the singular and
plural forms of the terms so defined and the words “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole.  The following capitalized terms used herein
have the following meanings:


 


“Agreement” means this Agreement, as amended,
restated, supplemented, or otherwise modified from time to time.


 


“Business
Day”  means any day other than a Saturday, a Sunday or a day on which banks
in the City of Boston are required, permitted or authorized, by applicable law
or executive order, to be closed for regular banking business.


 


“Commission” means the United States Securities and Exchange
Commission, or such successor federal agency or agencies as may be established
in lieu thereof.


 


“Company” is defined in the preamble to this
Agreement.


 


“Company
Indemnified Party” is defined in Section 4.2.


 


“Demand
Registration”
is defined in Section 2.1.1.


 


“Demand
Registration Period” means the period from and after (i) the date
upon which one-third (1/3) of the Shares issued to the Shareholder pursuant to
the Deferral Agreement are no longer subject to the restrictions set forth in Section 4
of the Deferral Agreement, through and including (ii) the date which is 12
calendar months following the latest of the expiration of the terms of the
leases dated January 31, 2007 and May 30, 2007 between subsidiaries
of the Company and subsidiaries of the Shareholder, as amended.


 


“Exchange
Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.


 


12

















 


“Maximum
Number of Shares” is defined in Section 2.1.3.


 


“Notices” is defined in Section 6.2.


 


“Piggy-Back
Registration”
is defined in Section 2.2.1.


 


“Prospectus” means a prospectus relating to a
Registration Statement, as amended or supplemented, including all materials
incorporated by reference in such Prospectus.


 


“register,” “registered” and “registration” refer to a registration effected
by preparing and filing a registration statement or similar document under the
Securities Act and such registration statement becoming effective.


 


“Registration
Statement”
means any registration statement filed by the Company with the Commission in
compliance with the Securities Act for a public offering and sale of Shares
(other than a registration statement on Form S-4 or Form S-8, or
their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another entity),
as amended or supplemented, including all materials incorporated by reference
in such Registration Statement.


 


“Restricted
Shares”
mean all of the Shares held of record by the Shareholder or held of record by
its permitted transferees from time to time in accordance with Section 6.1
(together with any shares issued in respect thereof as a result of any stock
split, stock dividend, share exchange, merger, consolidation or similar
recapitalization), in each case that are no longer subject to the restrictions
set forth in Section 4 of the Deferral Agreement; provided, that such Shares shall cease
to be Restricted Shares hereunder, as of any date, when:  (a) a Registration Statement with
respect to the sale of such Restricted Shares shall have become effective under
the Securities Act (as defined below) and such Restricted Shares shall have
been sold, transferred, disposed of or exchanged in accordance with such
Registration Statement as of such date; (b) such Restricted Shares shall
have been otherwise transferred pursuant to Rule 144 under the Securities
Act (or any similar provisions thereunder, but not Rule 144A), and new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act, in each case, as of
such date; (c) such Restricted Shares are saleable immediately in their
entirety without condition or limitation pursuant to Rule 144 under the
Securities Act; or (d) such Restricted Shares shall have ceased to be
outstanding as of such date.


 


“Securities
Act”
means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.


 


“Shareholder” is defined in the preamble to this
Agreement.


 


“Shareholder
Indemnified Party” is defined in Section 4.1.


 


“Shares” is defined in the recitals of this
Agreement.


 


“Underwriter” means a securities dealer who purchases
any Restricted Shares as principal in an underwritten offering and not as part
of such dealer’s market-making activities.


 


14.           REGISTRATION RIGHTS.


 


(a)           Demand
Registration.


 


13

















 


(i)            General Request
for Registration.  At any time during
the Demand Registration Period, the Shareholder may make a written demand for
registration under the Securities Act of all or part of the Restricted Shares
(a “Demand Registration”).  Any such written demand for a Demand
Registration shall specify the number of Restricted Shares proposed to be sold
and the intended method(s) of distribution thereof and, unless otherwise
agreed by the Shareholder, shall be for the Shareholder’s exclusive benefit.


 


(ii)           Underwritten
Offering.  If the Shareholder so
elects and so advises the Company as part of its written demand for a Demand
Registration, the offering of such Restricted Shares pursuant to such Demand
Registration shall be in the form of an underwritten offering.  In such case, the Shareholder shall enter
into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such underwriting by the Shareholder (which
Underwriter or Underwriters shall be reasonably acceptable to the Company),
complete and execute any questionnaires, powers of attorney, indemnities,
lock-up agreements, securities escrow agreements and other documents reasonably
required or which are otherwise customary under the terms of such underwriting
agreement, and furnish to the Company such information as the Company may
reasonably request in writing for inclusion in the Registration Statement.


 


(iii)          Reduction of
Offering.  If the managing
Underwriter or Underwriters for a Demand Registration that is to be an
underwritten offering advises the Company and the Shareholder that the dollar
amount or number of Restricted Shares which the Shareholder desires to sell
taken together with all other shares or other securities which the Shareholder
has agreed may be included in such offering, exceeds the maximum dollar amount
or maximum number of shares that can be sold in such offering without adversely
affecting the proposed offering price, the timing, the distribution method or
the probability of success of such offering (such maximum dollar amount or
maximum number of shares or other securities, as applicable, the “Maximum
Number of Shares”), then the Company shall include
in such registration:  (i) first,
the Restricted Shares which the Shareholder has requested be included in the
Demand Registration; (ii) second, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clause (i), the Shares or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (iii) third, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (i) and
(ii), the Shares or other securities for the account of other security holders
of the Company that can be sold without exceeding the Maximum Number of Shares.


 


(iv)          Withdrawal.  In the case of a Demand Registration, if the
Shareholder disapproves of the terms of any underwriting or is not entitled to
include all of its Restricted Shares in any offering, the Shareholder may elect
to withdraw such offering by giving written notice to the Company and the
Underwriter or Underwriters of its request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration.  In
such event, the Company need not seek effectiveness of such Registration
Statement.  If the Shareholder’s
withdrawal is based on (i) a material adverse change in circumstances with
respect to the Company and not known to the Shareholder at the time the Shareholder
makes its written demand for such Demand Registration, (ii) the Company’s
failure to comply with its obligations under this Agreement or (iii) a
reduction pursuant to Section 2.1.3 of 10% or more of the number of
Restricted Shares which the Shareholder has requested be included in the Demand
Registration, the Company shall pay all 


 


14

















 


expenses incurred
by the Shareholder in connection with such Demand Registration as provided in Section 3.2,
and such registration shall not count as a Demand Registration for purposes of Section 3.1.1(b) or
(e).


 


(b)           Piggy-Back
Registration.


 


(i)            Piggy-Back
Rights.  If, at any time on or after
the date of this Agreement, the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering of common shares of the
Company, or securities or other obligations exercisable or exchangeable for, or
convertible into, common shares of the Company, by the Company for its own
account or for any other shareholder of the Company for such shareholder’s
account, other than a Registration Statement (i) filed in connection with
any employee benefit plan, (ii) for an exchange offer or offering of
securities solely to the Company’s existing shareholders, (iii) for an
offering of debt securities convertible into equity securities of the Company, (iv) for
a dividend reinvestment plan or (v) filed on Form S-4, then the
Company shall (x) give written notice of such proposed filing to the
Shareholder as soon as practicable but in no event less than ten (10) Business
Days before the anticipated filing date, which notice shall describe the amount
and type of securities to be included in such offering, the intended method(s) of
distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering and (y) offer to the Shareholder in
such notice the opportunity to register the sale of such number of Restricted
Shares as the Shareholder may request in writing within five (5) Business
Days following receipt of such notice (a “Piggy-Back Registration”).  The Company shall
cause such Restricted Shares to be included in such registration and shall use
commercially reasonable efforts to cause the managing Underwriter or
Underwriters of a proposed underwritten offering to permit the Restricted
Shares requested to be included in the Piggy-Back Registration to be included
on the same terms and conditions as any similar securities of the Company and
to permit the sale or other disposition of such Restricted Shares in accordance
with the intended method(s) of distribution thereof.  If the Piggy-Back Registration involves an
Underwriter or Underwriters, the Shareholder shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for
such Piggy-Back Registration by the Company and complete and execute any
questionnaires, powers of attorney, indemnities, lock-up agreements, securities
escrow agreements and other documents reasonably required or which are
otherwise customary under the terms of such underwriting agreement, and furnish
to the Company such information as the Company may reasonably request in
writing for inclusion in the Registration Statement or such information that is
otherwise customary.


 


(ii)           Reduction of
Offering.  If the managing
Underwriter or Underwriters for a Piggy-Back Registration that is to be an
underwritten offering advises the Company and the holders of Restricted Shares
that the dollar amount or number of Shares or other securities which the
Company desire to sell, taken together with Shares or other securities, if any,
as to which registration has been demanded pursuant to written contractual
arrangements with persons other than the Shareholder, the Restricted Shares as
to which registration has been requested under this Section 2.2, and the
Shares or other securities, if any, as to which registration has been requested
pursuant to the written contractual piggy-back registration rights of other
shareholders of the Company, exceeds the Maximum Number of Shares, then the
Company shall include in any such registration:


 


15

















 


(a)           If the registration
is undertaken for the Company’s account: (i) first, the shares or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (ii) second, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clause (i), the
shares or other securities, if any, including the Restricted Shares, as to
which registration has been requested pursuant to written contractual
piggy-back registration rights of security holders (pro rata in accordance with the number of Shares or other
securities which each such person has actually requested to be included in such
registration, regardless of the number of shares or other securities with
respect to which such persons have the right to request such inclusion) that
can be sold without exceeding the Maximum Number of Shares; and


 


(b)           If the registration
is a “demand” registration undertaken at the demand of persons, other than the
Shareholder, pursuant to written contractual arrangements with such persons, (i) first,
the Shares or other securities for the account of the demanding persons that
can be sold without exceeding the Maximum Number of Shares; (ii) second,
to the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (i), the Shares or other securities that the Company desires
to sell that can be sold without exceeding the Maximum Number of Shares; and (iii) third,
to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i) and (ii), the shares or other securities, if any,
including the Restricted Shares, as to which registration has been requested
pursuant to written contractual piggy-back registration rights which other
security holders desire to sell (pro rata
in accordance with the number of Shares or other securities which each such
person has actually requested to be included in such registration, regardless
of the number of shares or other securities with respect to which such persons
have the right to request such inclusion) that can be sold without exceeding
the Maximum Number of Shares.


 


(iii)          Withdrawal.  The Shareholder may elect to withdraw its
request for inclusion of Restricted Shares in any Piggy-Back Registration by
giving written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. 
The Company may also elect to withdraw a registration at any time prior
to the effectiveness of the Registration Statement.  If the Shareholder’s withdrawal is based on (i) a
material adverse change in circumstances with respect to the Company and not
known to the Shareholder at the time the Shareholder elects to participate in
such Piggy-Back Registration, (ii) the Company’s failure to comply with
its obligations under this Agreement or (iii) a reduction pursuant to Section 2.2.2
of 10% or more of the number of Restricted Shares which the Shareholder has
requested be included in the Piggy-Back Registration, the Company shall pay all
expenses incurred by the Shareholder in connection with such Piggy-Back
Registration as provided in Section 3.2.


 


15.           REGISTRATION PROCEDURES.


 


(a)           Filings;
Information.  Whenever the Company is
required to effect the registration of any Restricted Shares pursuant to Section 2,
the Company shall use commercially reasonable efforts to effect the
registration and sale of such Restricted Shares in accordance with the intended
method(s) of distribution thereof as expeditiously as practicable, and in
connection with any such request.


 


16

















 


(i)            Filing
Registration Statement.  The Company
shall, as expeditiously as possible and in any event within thirty (30) days
after receipt of a request for a Demand Registration pursuant to Section 2.1,
prepare and file with the Commission a Registration Statement on any form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of all Restricted
Shares to be registered thereunder in accordance with Section 2.1.2 and
the intended method(s) of distribution thereof, and shall use commercially
reasonable efforts to cause such Registration Statement to become and remain
effective for the period required by Section 3.1.3; provided, however, that:


 


(a)           the Company shall
have the right to defer any Demand Registration for periods of up to thirty
(30) days, and any Piggy-Back Registration for such period(s) as may be
applicable to deferment of any demand registration to which such Peggy-Back
Registration relates, in each case if the Company shall furnish to the holders
a certificate signed by the Chief Executive Officer of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, it
would be materially detrimental to the Company and its Shareholder for such
Registration Statement to be effected at such time (including without
limitation because the Company is then engaged in a material transaction or has
an undisclosed material corporate development, in either case, which would be
required to be disclosed in the Registration Statement); provided, further, however, that the Company shall not
have the right to exercise the right set forth in this clause (a) for more
than one hundred and twenty (120) days in any 365-day period in respect of a
Demand Registration (including in such 120 days, any deferral under subsection (d) of
this Section 3.1.1 if the Registration Statement was not timely filed
thereunder);


 


(b)           the Company shall
not be obligated to effect any registration of Restricted Shares upon receipt
of a written demand for a Demand Registration if the Company has already
completed three (3) Demand Registrations;


 


(c)           the
Company shall not be obligated to effect any registration of Restricted Shares
upon receipt of a written demand for a Demand Registration in the event that
the number of Restricted Shares proposed to be included in the Demand
Registration represents less than one-third (1/3) of the Shares issued to the
Shareholder pursuant to the Deferral Agreement or if less, all the Shares then
held by the Shareholder;


 


(d)           the
Company shall not then be obligated to effect any registration of Restricted
Shares upon receipt of a written demand for a Demand Registration if the
Company shall furnish to the Shareholder a certificate signed by the Chief
Executive Officer of the Company stating that within ninety (90) days of
receipt of the written demand for a Demand Registration, the Company shall file
a Registration Statement and offer to the Shareholder the opportunity to
register Restricted Shares thereunder in accordance with Section 2.2; and


 


17

















 


(e)           the
Company shall not be obligated to effect any registration of Restricted Shares
upon receipt of a written demand for a Demand Registration if the Company has,
within the six (6) month period preceding the date of the written demand
for a Demand Registration already effected one Demand Registration for the
Shareholder pursuant to Section 2.1.


 


(ii)           Copies.  If the Shareholder has included Restricted
Shares in a registration, the Company shall, prior to filing a Registration
Statement or Prospectus, or any amendment or supplement thereto, furnish
without charge to the Shareholder and its counsel, copies of such Registration
Statement as proposed to be filed, each amendment and supplement to such
Registration Statement (in each case including all exhibits thereto and
documents incorporated by reference therein), the Prospectus included in such
Registration Statement (including each preliminary Prospectus), and such other
documents as the Shareholder or counsel for any the Shareholder may reasonably
request in order to facilitate the disposition of the Restricted Shares
included in such registration.


 


(iii)          Amendments and
Supplements.  The Company shall
prepare and file with the Commission such amendments, including post-effective
amendments, and supplements to such Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective and in compliance with the provisions of the Securities Act
until all Restricted Shares, and all other securities covered by such
Registration Statement, have been disposed of in accordance with the intended
method(s) of distribution set forth in such Registration Statement (which
period shall not exceed the sum of one hundred eighty (180) days, plus any
period during which any such disposition is interfered with by any stop order
or injunction of the Commission or any governmental agency or court ) or such
securities have been withdrawn.


 


(iv)          Notification.  If the Shareholder has included Restricted
Shares in a registration, after the filing of the Registration Statement, the
Company shall promptly, and in no event more than two (2) Business Days
after such filing, notify the Shareholder of such filing, and shall further
notify the Shareholder promptly and confirm such notification in writing in all
events within two (2) Business Days of the occurrence of any of the
following:  (i) when such
Registration Statement becomes effective; (ii) when any post-effective
amendment to such Registration Statement becomes effective; (iii) the
issuance or threatened issuance by the Commission of any stop order (and the
Company shall use reasonable best efforts to prevent the entry of such stop
order or to remove it if entered); and (iv) any request by the Commission
for any amendment or supplement to such Registration Statement or any
Prospectus relating thereto or for additional information or of the occurrence
of an event requiring the preparation of a supplement or amendment to such
Prospectus so that, as thereafter delivered to the purchasers of the securities
covered by such Registration Statement, such Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and promptly make available to the Shareholder any such supplement
or amendment; except that before filing with the Commission a Registration
Statement or Prospectus or any amendment or supplement thereto, including
documents incorporated by reference, the Company shall furnish to the
Shareholder and to its counsel, copies of all such documents proposed to be
filed sufficiently in advance of filing to provide the Shareholder and its
counsel with a reasonable opportunity to review such documents 


 


18

















 


and comment
thereon, and the Company shall not file any Registration Statement or
Prospectus or amendment or supplement thereto, including documents incorporated
by reference, to which the Shareholder or its counsel shall reasonably object.


 


(v)           State Securities
Laws Compliance.  If the Shareholder
has included Restricted Shares in a registration the Company shall use
commercially reasonable efforts to (i) register or qualify the Restricted
Shares covered by the Registration Statement under such securities or “blue sky”
laws of such jurisdictions in the United States as the Shareholder (in light of
the intended plan of distribution) may request and (ii) take such action
necessary to cause such Restricted Shares covered by the Registration Statement
to be registered with or approved by such other federal or state authorities as
may be necessary by virtue of the business and operations of the Company and do
any and all other acts and things that may be necessary or advisable to enable
the Shareholder to consummate the disposition of such Restricted Shares in such
jurisdictions; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3.1.5 or subject
itself to taxation in any such jurisdiction.


 


(vi)          Agreements for
Disposition.  The Company shall enter
into customary agreements (including, if applicable, an underwriting agreement
in customary form) and use commercially reasonable efforts to take such other
actions as are required in order to expedite or facilitate the disposition of
Restricted Shares.  The representations,
warranties and covenants of the Company in any underwriting agreement which are
made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the Shareholder.  For the avoidance of doubt, the Shareholder
may not require the Company to accept terms, conditions or provisions in any
such agreement which the Company determines are not reasonably acceptable to
the Company, notwithstanding any agreement to the contrary herein.  The Shareholder shall not be required to make
any representations or warranties in the underwriting agreement except as
reasonably requested by the Company and, if applicable, with respect to the
Shareholder’s organization, good standing, authority, title to Restricted
Shares, lack of conflict of such sale with such holder’s material agreements
and organizational documents, and with respect to written information relating
to the Shareholder that the Shareholder has furnished in writing expressly for
inclusion in such Registration Statement. 
The Shareholder, however, shall agree to such covenants and
indemnification and contribution obligations for selling stockholders as are
reasonable and customarily contained in agreements of that type.


 


(vii)         Cooperation.  The Company and all officers and members of
the management of the Company, shall reasonably cooperate in any offering of
Restricted Shares under this Agreement, which cooperation shall include,
without limitation, the preparation of the Registration Statement with respect
to such offering and all other offering materials and related documents, and
participation in meetings with Underwriters, attorneys, accountants and
potential investors.  The Shareholder
shall reasonably cooperate in the preparation of the registration statement and
other documents relating to any offering in which it includes securities
pursuant to this Section 3.  The
Shareholder shall also furnish to the Company such information regarding
itself, the Restricted Shares held by it, and the intended method(s) of
disposition of such securities as shall be reasonably required to effect the
registration of the Restricted Shares.


 


19

















 


(viii)        Records.  Upon reasonable notice and during normal
business hours, subject to the Company receiving any customary confidentiality
undertakings or agreements, the Company shall make available for inspection by
the Shareholder, any Underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other professional
retained by the Shareholder or any Underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company as
shall be necessary to enable them to exercise their due diligence
responsibility, and shall cause the Company’s officers, directors and employees
to supply all information reasonably requested by the Shareholder in connection
with such Registration Statement.


 


(ix)           Opinions and
Comfort Letters.  The Company shall
use commercially reasonable efforts to furnish to the Shareholder signed
counterparts, addressed to the Shareholder, of (i) any opinion of counsel
to the Company delivered to any Underwriter and (ii) any comfort letter
from the Company’ independent public accountants delivered to any Underwriter; provided,  however,
that counsel to the Underwriter shall have exclusive authority to negotiate the
terms thereof.  In the event no legal
opinion is delivered to any Underwriter, the Company shall furnish to the
Shareholder, at any time that the Shareholder elects to use a Prospectus, an
opinion of counsel to the Company to the effect that the Registration Statement
containing such Prospectus has been declared effective, that no stop order is
in effect, and such other matters as the Shareholder may reasonably request as
would customarily have been addressed in an opinion of counsel to the Company
delivered to an Underwriter.


 


(x)            Earnings
Statement.  The Company shall comply
with all applicable rules and regulations of the Commission and the Securities
Act, and make generally available to its shareholders, as soon as practicable,
an earnings statement satisfying the provisions of Section 11(a) of
the Securities Act, provided that the Company will be deemed to have complied
with this Section 3.1.10 if the earnings statement satisfies the
provisions of Rule 158 under the Securities Act.


 


(xi)           Listing.  The Company shall use commercially reasonable
efforts to cause all Restricted Shares included in any registration to be
listed on such exchanges or otherwise designated for trading in the same manner
as similar shares of the Company are then listed or designated or, if no such
similar securities are then listed or designated, in a manner satisfactory to
the Shareholder.


 


(b)           Registration
Expenses.  The Company shall bear all
customary costs and expenses incurred in connection with any Demand
Registration effected pursuant to Section 2.1, and any Piggy-Back
Registration effected pursuant to Section 2.2, and all reasonable expenses
incurred in performing or complying with its other obligations under this
Agreement, whether or not the Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees; (ii) fees
and expenses of compliance with securities or “blue sky” laws (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Restricted Shares, subject to the limit set forth in paragraph (ix) below);
(iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all fees, salaries and expenses of its
officers, employees and management); (v) the fees and expenses incurred in
connection with the listing of the Restricted Shares, as required by Section 3.1.11;
(vi) fees imposed by the Financial Industry Regulatory Authority, Inc.;
(vii) fees and disbursements of 


 


20

















 


counsel for the Company and fees and expenses for independent certified
public accountants retained by the Company (including the expenses or costs
associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1.9); (viii) the fees and expenses of any
special experts retained by the Company in connection with such registration;
and (ix) the fees and expenses of one counsel selected by the Shareholder
in a Demand Registration or if it participates in a Piggy-Back
Registration.  The Company shall have no
obligation to pay any underwriting discounts or selling commissions
attributable to the Restricted Shares being sold by the Shareholder, which
underwriting discounts or selling commissions shall be borne solely by the
Shareholder.  Additionally, in an
underwritten offering, the Shareholder and the Company shall bear the expenses
of the Underwriter or Underwriters pro rata in
proportion to the respective amount of shares each is selling in such offering.


 


(c)           Information.  The Shareholder shall provide such
information as may reasonably be requested by the Company, or the managing
Underwriter, if any, in connection with the preparation of any Registration
Statement, including amendments and supplements thereto, in order to effect the
registration of any Restricted Shares under the Securities Act pursuant to Section 2
and in connection with the Company’s obligation to comply with federal and
applicable state securities laws.


 


(d)           Shareholder
Obligations.  The Shareholder may not
participate in any underwritten offering pursuant to Section 2 unless such
holder (i) agrees to only sell Restricted Shares on the basis reasonably
provided in any underwriting agreement, and (ii) completes, executes and
delivers any and all questionnaires, lock-up agreements, powers of attorney,
custody agreements, indemnities, underwriting agreements and other documents
reasonably or customarily required by or under the terms of any underwriting
agreement or as reasonably requested by the Company.


 


16.           INDEMNIFICATION AND CONTRIBUTION.


 


(a)           Indemnification
by the Company.  The Company agrees
to indemnify and hold harmless the Shareholder and its officers, employees,
affiliates, directors, partners, members, attorneys and agents, and each
person, if any, who controls the Shareholder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) (each, a “Shareholder
Indemnified Party”) from and against any expenses, losses, judgments, claims,
damages or liabilities, whether joint or several, arising out of or based upon
any untrue statement (or allegedly untrue statement) of a material fact
contained in any Registration Statement under which the sale of Restricted
Shares was registered under the Securities Act, any preliminary Prospectus,
final Prospectus or summary Prospectus contained in such Registration
Statement, or arising out of or based upon any omission (or alleged omission)
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such expense, loss,
judgment, claim, damage or liability arises out of or is based upon (a) any
untrue statement or allegedly untrue statement or omission or alleged omission
made in such Registration Statement, preliminary Prospectus, final Prospectus
or summary Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Shareholder expressly for use
therein, or (b) the use of any Registration Statement, any preliminary
Prospectus, final Prospectus or summary Prospectus during a period when the
Shareholder has been notified that a stop order has been issued in respect
thereof or 


 


21

















 


any proceeding for that purpose has been initiated, or the use of any
Registration Statement, any preliminary Prospectus, final Prospectus or summary
Prospectus has been suspended by the Company pursuant to the terms of this
Agreement.  The foregoing indemnity shall
not inure to the benefit of any Shareholder Indemnified Party from whom the
person asserting losses, claims, damages or liabilities purchased Restricted
Shares, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Shareholder Indemnified Party to such
person, if required by law so to have been delivered at or prior to the written
confirmation of the sale of Restricted Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company with Section 3.1.3.


 


(b)           Indemnification
by the Shareholder.  The Shareholder
will, with respect to any Registration Statement where Restricted Shares were
registered under the Securities Act, indemnify and hold harmless the Company,
each of the Company’s directors and officers, and each other person, if any,
who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) (each, a “Company
Indemnified Party”), against any expenses, losses, claims, judgments, damages
or liabilities, whether joint or several, insofar as such expenses, losses,
claims, judgments, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or allegedly untrue statement of
a material fact contained in any Registration Statement under which the sale of
such Restricted Shares was registered under the Securities Act, any preliminary
Prospectus, final Prospectus or summary Prospectus contained in such
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the alleged
omission to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, if the statement or omission was
made in reliance upon and in conformity with information furnished in writing
to the Company by the Shareholder expressly for use therein.  The Shareholder’s indemnification obligations
hereunder shall be limited to the amount of any net proceeds actually received
by the Shareholder.


 


(c)           Notification
of Indemnification.  Promptly after
receipt by an indemnified party under this Section 4 of notice of the
commencement of any action (including any action by a governmental authority),
such indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 4, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
shall have the right to retain its own counsel, with the reasonable fees and
expenses of one such counsel to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such counsel
in such proceeding.  The failure to
deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 4, but the omission so to deliver
written notice to the indemnifying party shall not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 4.


 


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17.           UNDERWRITING AND DISTRIBUTION.


 


(a)           Rule 144.  The Company covenants that it shall file all
reports required to be filed by it under the Securities Act and the Exchange
Act and shall take such further action as the Shareholder may reasonably
request, all to the extent required from time to time to enable the Shareholder
to sell Restricted Shares without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 under the Securities
Act, or any similar provision thereto, but not Rule 144A.


 


18.           MISCELLANEOUS.


 


(a)           Assignment;
No Third Party Beneficiaries.  This
Agreement and the rights, duties and obligations of the Company hereunder may
not be assigned or delegated by the Company in whole or in part and shall be
binding on its successors.  This
Agreement and the rights, duties and obligations of the Shareholder hereunder
may be assigned, transferred or delegated by the Shareholder, in whole or in
part, in conjunction with and to the extent of any permitted transfer of
Restricted Shares to an affiliate of the Shareholder in accordance with
applicable law, which affiliate agrees in writing to be subject to and bound by
all duties and obligations set forth in this Agreement, whereupon any such
assignee, transferee or delegable would have all rights, duties and obligations
hereunder in addition to the Shareholder to the extent that the Shareholder
continues to own Restricted Shares.  This
Agreement and the rights, duties and obligations of the Shareholder hereunder
may be assigned, transferred or delegated by the Shareholder, in whole or in
part, in conjunction with and to the extent of any permitted transfer of 1/3 or
more of the Shares issued to the Shareholder under the Deferral Agreement or if
less, all the Restricted Shares then held by the Shareholder to a person or
entity that is not an affiliate of the Shareholder in accordance with
applicable law and which person or entity agrees in writing to be subject to
and bound by all duties and obligations set forth in this Agreement, whereupon
any such assignee, transferee or delegable would have all rights, duties and
obligations hereunder; provided, however, that the rights, duties and
obligations hereunder may not be assigned, transferred or delegated to a person
that is not an affiliate of the Shareholder may not be further assigned,
transferred or delegated by such person. 
This Agreement is not intended to confer any rights or benefits on any
persons that are not party hereto other than as expressly set forth in Section 4
and this Section 6.1.


 


(b)           Notices.
All notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”) required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, or facsimile, addressed as set forth below, or to such other address
as such party shall have specified most recently by written notice provided in
accordance with this Section 6.2. 
Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by facsimile; provided,
that if such service or transmission is not on a Business Day or is after
normal business hours, then such notice shall be deemed given on the next
Business Day.  Notice otherwise sent as
provided herein shall be deemed given on the next Business Day following timely
delivery of such notice to a reputable air courier service with an order for next-day
delivery.


 


23

















 


To the Company:


 


TravelCenters of America
LLC


24601 Center Ridge Road


Westlake, Ohio  44145


Attn:  Thomas M. O’Brien, President


Facsimile:  (440) 808-3301


 


with a copy (which shall not constitute notice) to:


 


Skadden, Arps, Slate Meagher & Flom LLP

One Beacon Street

Boston, MA 02108

Attn.:  Louis Goodman

Facsimile:  (617) 573-4822


 


To the Shareholder:


 


Hospitality Properties
Trust


400 Centre Street


Newton,
Massachusetts  02458


Attn:  John G. Murray, President


Facsimile:  (617) 969-5730


 


with a copy (which
shall not constitute notice) to:


 


Sullivan &
Worcester LLP


One Post Office Square


Boston,
Massachusetts  02109


Attn:  Richard Teller


Facsimile: (617) 338-2880


 


(c)           Severability.  This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof.  Furthermore, if any
term or provision hereof shall be deemed to be invalid or unenforceable, the
parties hereto shall mutually agree upon an amendment to this Agreement to
include a term or provision as similar in purpose to such invalid or
unenforceable term or provision as may be reasonably possible and which term or
provision is valid and enforceable.


 


(d)           Counterparts.  This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.


 


(e)           Entire
Agreement.  This Agreement (including
all agreements entered into pursuant hereto and all certificates and
instruments delivered pursuant hereto and thereto) constitute the entire
agreement of the parties with respect to the subject matter hereof and 


 


24

















 


supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.


 


(f)            Modifications
and Amendments.  No amendment,
modification or termination of this Agreement shall be binding upon any party
unless executed in writing by such party.


 


(g)           Titles
and Headings.  Titles and headings of
sections of this Agreement are for convenience only and shall not affect the
construction of any provision of this Agreement.


 


(h)           Waivers
and Extensions.  Any party entitled
to benefits under this Agreement may waive any right, breach or default which
such party has the right to waive;  provided, that such waiver will not
be effective against the waiving party unless it is in writing, is signed by
such party, and specifically refers to this Agreement.  Waivers may be made in advance or after the
right waived has arisen or the breach or default waived has occurred.  Any waiver may be conditional.  No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof nor of any other agreement or provision herein
contained.  No waiver or extension of
time for performance of any obligations or acts shall be deemed a waiver or
extension of the time for performance of any other obligations or acts.


 


(i)            Remedies
Cumulative.  If the Company fails to
observe or perform any covenant or agreement to be observed or performed under
this Agreement, the Shareholder may proceed to protect and enforce its rights
by suit in equity or action at law, whether for specific performance of any
term contained in this Agreement or for an injunction against the breach of any
such term or in aid of the exercise of any power granted in this Agreement or
to enforce any other legal or equitable right, or to take any one or more of
such actions, without being required to post a bond.  None of the rights, powers or remedies
conferred under this Agreement shall be mutually exclusive, and each such
right, power or remedy shall be cumulative and in addition to any other right,
power or remedy, whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.


 


(j)            Governing
Law.  This Agreement shall be
governed by and interpreted and construed in accordance with the laws of the
State of Delaware applicable to contracts formed and to be performed entirely
within the State of Delaware, without regard to
the conflicts of law provisions thereof to the extent such principles or rules would
require or permit the application of the laws of another jurisdiction.  The Company and the Shareholder irrevocably
and unconditionally submit to the exclusive jurisdiction of any state or
federal court sitting in the State of Delaware, in any action arising out of or
relating to this Agreement, agree that all claims in respect of the action may
be heard and determined in any such court and agree not to bring any action
arising out of or relating to this Agreement in any other court.  In any action, the Company and the
Shareholder irrevocably and unconditionally waive and agree not to assert by
way of motion, as a defense or otherwise any claims that it is not subject to the
jurisdiction of the above court, that such action is brought in an inconvenient
forum or that the venue of such action is improper.  Without limiting the foregoing, the Company
and the Shareholder agree that service of process at each parties respective
addresses as provided for in Section 6.2 shall be deemed effective service
of process on such party.


 


25

















 


(k)           Non-liability
of Trustees.  THE AMENDED AND
RESTATED DECLARATION OF TRUST OF HOSPITALITY PROPERTIES TRUST, DATED
AUGUST 21, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS AND
SUPPLEMENTS THERETO, IS DULY FILED IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE NAME “HOSPITALITY
PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER THE DECLARATION OF TRUST AS SO
AMENDED AND SUPPLEMENTED, COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF
HOSPITALITY PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY
OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HOSPITALITY PROPERTIES
TRUST.  ALL PERSONS DEALING WITH
HOSPITALITY PROPERTIES TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
HOSPITALITY PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION.


 


(l)            Legends.  The Shareholder understands and agrees that
the certificate representing the Shares issued to the Shareholder pursuant to
the Deferral Agreement (and any certificate or certificates issued in
replacement thereof) shall bear the following legends:


 


(a)           “These securities have not been
registered under the Securities Act of 1933. 
They may not be sold, offered for sale, pledged or hypothecated in the
absence of a registration statement in effect with respect to the securities
under the Securities Act or an opinion of counsel (which counsel shall be
reasonably satisfactory to TravelCenters of America LLC) that such registration
is not required or unless sold pursuant to Rule 144 of the Securities Act.”;


 


(b)           any legend generally appearing of
certificates for the Company’s shares;


 


(c)           and any legend required by applicable
state securities laws; and


 


(c)           “These securities are subject to and
shall be transferable only upon the terms and conditions of the Deferral
Agreement, dated August 11, 2008, among TravelCenters of America LLC,
Hospitality Properties Trust and certain of their affiliates,  A
copy of which is on file with the Secretary of TravelCenters of America LLC.”


 


Signatures
appear on the next  page


 


26

















 


Executed under seal   as
of the date first above written.


 




	
   

  	
   

  	
  TRAVELCENTERS
  OF AMERICA LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Name: Thomas M. O’Brien

  
	
   

  	
   

  	
   

  	
  Title: President

  






 




	
   

  	
   

  	
  HOSPITALITY
  PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  John G. Murray

  
	
   

  	
   

  	
   

  	
  Name: John G. Murray

  
	
   

  	
   

  	
   

  	
  Title: President

  






 


27